The Invisible Royal Hand in Crimes against Humanity in Eswatini

"Swaziland Protest" by garryknight, licensed under CC BY 2.0.

Eswatini has been the staging area for human rights violations since the colonial era.

A brief moment of self-governance ended in 1973, when the current king’s father, Sobhuza II, unilaterally abrogated the British-imposed Constitution and, instead of creating space for a participatory government, issued a royal decree that would outlast and supersede all other laws to date, including the 2006 Constitution.

Under this decree, Sobhuza II assumed all judicial, legislative and executive powers. Those powers would later pass on to his son, Mswati III. It is in that context that the recent public protests and state-sponsored crimes against humanity should be understood.

Currently, the king sits in every important decision-making platform: He appoints judges; determines legal disputes (even in matters that have been settled by the highest courts in Eswatini); makes laws (king’s assent is required before parliament’s actions become law); partly appoints legislators; and many other important governance and leadership appointments.

The king enjoys these powers within the framework of a legal system that prohibits all forms of political expression, formations and associations, while constitutionally protecting the king from accountability.

The recent uprisings in Eswatini began when citizens marched peacefully to their members of parliament to deliver petitions demanding constitutional reforms to allow them to elect their own prime minister (instead of having one chosen by the king). The government, hiding behind Covid-19 regulations, banned these marches and the police (including the para-military wing) were unleashed to stop them. Soon the entire country was thrown into chaos.

Though the two major towns of Manzini and Mbabane were the epicenter, protests were held even in far-flung rural areas, which hitherto were beacons of royal family support. Protesters identified businesses in which the king had shares, looted and burnt them. In response, the government deployed the army, which took over the streets with boots on the ground and helicopters for aerial support.

There were reports of civilians being shot at random from helicopters, thrown alive into burning buildings, indiscriminately pulled out of their homes and beaten up or arrested, as well as medical personnel being forced to remove bullets from victims so the police could destroy evidence.

To mask these atrocities, the government shut down the internet, halting the flow of information between people and preventing evidence of crimes against humanity from reaching a wider global audience.

Estimates place the casualty count at 70 civilians, with many more injured or permanently disabled. Hundreds were arrested indiscriminately, on the streets, in their homes or near protest epicenters.

It is trite that the occurrences of that period amount to crimes against humanity. Under international law, crimes against humanity exist where certain acts are committed as part of a widespread or systematic attack directed at any civilian population, with knowledge of the attack. Such acts include murder, extermination, enslavement, deportation, imprisonment or deprivation of liberty, and other inhumane acts aimed at causing serious bodily or mental injury.

There is no debate that these acts were committed by army and police personnel against those perceived to be anti-monarch, that this was done with the knowledge of the government and this was a systematic attack on the civilian population. Thus, crimes against humanity were, for the first time in years, committed on a grand scale by the Government of Eswatini.

By design, Eswatini is not party to the Rome Statute – as such, unless the matter is referred to the International Criminal Court by the United Nations Security Council, it has no jurisdiction. Furthermore, a country that goes to lengths to shield its unelected leader from its domestic courts cannot be expected to happily hand him over to an international court.

“The king enjoys these powers within the framework of a legal system that prohibits all forms of political expression, formations and associations, while constitutionally protecting the king from accountability.”

Section 11 of the Eswatini Constitution provides that the king shall be immune from prosecution or any legal suit for anything he does or omits to do. Essentially, this means that he cannot be held accountable, even for crimes against humanity. This position was endorsed in Law Society of Swaziland v Simelane NO, where the court held that a lawsuit to challenge the appointment of judges was essentially an attack on the person of the king, and as such in violation of section 11.

Had the African Criminal Court been in existence, it too could not have assisted much because of article 46A bis – which grants heads of states and senior officials immunity from prosecution for the duration of their tenure of office. For Eswatini, this means the king can never be prosecuted since by law he only vacates office upon death.

The last resort in holding the perpetrators of these crimes accountable is the use of universal jurisdiction, by relying on the foreign courts of other states that the king and his co-perpetrators might visit in the future. South Africa, for example, recognizes universal jurisdiction and is bound by relevant international law.

While it might appear that the king and other senior officials could rely on the ICJ decision in the Arrest Warrant case to claim immunity from such prosecution, this would not work where customary international law is invoked and universal jurisdiction is used. Further, the South African legal framework, through the South African Foreign States Immunities Act 1981, the Rome Statute Implementation Act 2002, the Prevention and Combating of Torture of Persons Act 2013, the Grace Mugabe case and the Al Bashir case, would militate against them. Chances of that perceived immunity being disregarded and the prosecution going ahead would be high.

Some commentators might argue that legal reform in Eswatini could offer a remedy. However, the constitutional design and the entrenchment provisions will likely pose a barrier to any desired amendments. Entrenchment is designed to make constitutional amendment difficult.

In Eswatini, the key problematic clauses are specially entrenched, requiring 75% affirmative votes in parliament before amendment. Furthermore, simply attaining this threshold does not guarantee an amendment.

The Constitution states that once this 75% vote is obtained, only then can the amended text be sent to the head of state for endorsement. The assent of the head of state would be required and he would need to put the proposed amendment to a referendum. Even the result of that referendum, would still require ‘the assent of the king’.

Given the extensive power of the royal family and the constitutional, economic, and military protection it enjoys, the victims and their families must look outside Eswatini for justice.

The solution, for now, does not look likely to come from political reforms, but from a careful and calculated use of the international criminal justice framework. That system can effectively unmask the extent of the invisible royal hand in the atrocities in Eswatini.